Citation Nr: 0638637
Decision Date: 12/12/06 Archive Date: 12/19/06
DOCKET NO. 05-03 628 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUES
1. Entitlement to service connection for tinnitus.
2. Entitlement to service connection for bilateral hearing
loss.
3. Entitlement to service connection for residuals of an
injury to the right knee.
4. Entitlement to service connection for a left knee
disability.
5. Entitlement to service connection for myasthenia gravis.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart of the U.S.A.
ATTORNEY FOR THE BOARD
J.G. Reinhart, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1965 to July
1968.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a September 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Los Angeles, California.
The issues of entitlement to service connection for residuals
of a right knee injury, a left knee disability, bilateral
hearing loss, and tinnitus are addressed in the REMAND
portion of the decision below and are REMANDED to the RO via
the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
No competent evidence of record shows that the veteran's
myasthenia gravis had its onset in service or is
etiologically related to his service, to include as due to
herbicide exposure.
CONCLUSION OF LAW
Myasthenia gravis was not incurred in or aggravated by
service, and service connection for myasthenia gravis may not
be presumed. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1137
(West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), (codified
at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West
2002)), imposes obligations on VA in terms of its duty to
notify and assist claimants. Under the VCAA, when VA
receives a complete or substantially complete application for
benefits, it is required to notify the claimant and his
representative, if any, of any information and medical or lay
evidence that is necessary to substantiate the claim. 38
U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2006);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004)
(Pelegrini II), the United States Court of Appeals for
Veterans Claims (Court) held that VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the claimant is expected to provide; and
(4) request that the claimant provide any evidence in his
possession that pertains to the claim. VCAA notice must be
provided prior to the initial unfavorable adjudication by the
RO. Id. at 120.
The VCAA notice requirements apply to all five elements of a
service connection claim. The five elements are: 1) veteran
status; 2) existence of a disability; (3) a connection
between the veteran's service and the disability; 4) degree
of disability; and 5) effective date of the disability.
Dingess v. Nicholson, 19 Vet. App. 473 (2006).
VA satisfied the duty to notify by means of a letter to the
veteran from the RO dated in July 2003. This notice was
provided to the veteran prior to initial adjudication of the
claim by the RO in September 2003. The veteran was told of
the requirements to establish a successful claim, advised of
his and VA's respective duties, and asked to submit
information and/or evidence, which would include that in his
possession, to the RO. The timing and content of this letter
complied with the requirements of 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b).
VCAA notice with regard to assignment of disability ratings
and effective dates was not provided to the veteran.
However, as the Board is denying his claims for service
connection for a left knee disability and myasthenia gravis
any questions as to the assignment of disability ratings or
effective dates are rendered moot.
Service medical records are associated with the claims file
as are VA medical treatment records and records and reports
from private treatment providers. The veteran has not
requested VA assistance in obtaining any other evidence. The
Board is aware of the veteran's July 2004 statement that he
was receiving "state" disability due to the conditions for
which he has claimed entitlement to service connection.
However, the Board concedes that the veteran currently
suffers from myasthenia gravis and evidence of record shows
that the veteran's myasthenia gravis did not manifest for
over three decades after discharge from service. Therefore
any records associated with a disability claim are not
pertinent to this appeal. Regardless, the veteran has had
ample opportunity to identify the location of outstanding
medical records and has not done so. The duty to assist is
not a one-way street. Wood v. Derwinski, 1 Vet. App. 190
(1991). Therefore, the Board finds that VA has met its duty
to assist the veteran in the development of this claim.
Assistance shall include providing a medical examination or
obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim. 38
U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4)
(2006). However, merely filing a claim for benefits is not
enough to necessitate a medical examination. VA's duty to
provide a medical examination is not triggered unless the
record contains competent evidence of a current disability or
symptoms of a current disability, evidence establishing that
an event, injury, or disease occurred in service or a
diseases manifesting during an applicable presumptive period,
and an indication that the disability or persistent or
recurrent symptoms of a disability may be associated with
service or a service-connected disability. 38 U.S.C.A. §
5103A; McLendon v. Nicholson, 20 Vet. App. 79 (2006).
While evidence does show the veteran to currently suffer from
myasthenia gravis, no competent evidence indicates that his
myasthenia gravis manifested during service or may be
associated with his service. VA thus declines to provide a
medical examination in this case.
The Board therefore finds that VA has satisfied its duty to
notify (each of the four content requirements) and the duty
to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and
5103 (West 2002); 38 C.F.R. §§ 3.159(b), 20.1102 (2006);
Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini
II); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The
veteran has not claimed that VA has failed to comply with the
notice requirements of the VCAA.
Service Connection
38 U.S.C. § 7104 indicates that Board decisions must be based
on the entire record, with consideration of all the
evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000),
the Court held, in pertinent part, that the law requires only
the Board address its reasons for rejecting evidence
favorable to the claimant. The Federal Circuit has also held
that the Board must review the entire record, but does not
have to discuss each piece of evidence. Gonzales v. West,
218 F.3d 1378, 1380-81 (Fed. Cir. 2000).
Service connection may be granted if the evidence
demonstrates that a current disability resulted from an
injury or disease incurred or aggravated in active military
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).
Service connection generally requires evidence of a current
disability with relationship or connection to an injury or
disease or some other manifestation of the disability during
service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998)
(citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).
Where the determinative issue involves medical causation or a
medical diagnosis, there must be competent medical evidence
to the effect that the claim is plausible; lay assertions of
medical status do not constitute competent medical evidence.
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
It is VA's defined and consistently applied policy to
administer the law under a broad interpretation, consistent,
however, with the facts shown in every case. When, after
careful consideration of all procurable and assembled data, a
reasonable doubt arises regarding service origin, the degree
of disability, or any other point, such doubt will be
resolved in favor of the claimant. By reasonable doubt it is
meant that an approximate balance of positive and negative
evidence exists which does not satisfactorily prove or
disprove the claim. It is a substantial doubt and one within
the range of probability as distinguished from pure
speculation or remote possibility. See 38 U.S.C.A. §
5107(b); 38 C.F.R. § 3.102.
The veteran contends that he suffers from myasthenia gravis
as a result of exposure to the herbicide, Agent Orange,
during his service in the Republic of Vietnam.
VA regulations provide that if a veteran was exposed to a
herbicide agent during active military, naval, or air
service, the following diseases shall be service connected,
if the requirements of 38 C.F.R. § 3.307(a) are met, even if
there is no record of such disease during service: chloracne
or other acneform disease consistent with chloracne; type 2
diabetes (also known as Type II diabetes mellitus); Hodgkin's
disease; chronic lymphocytic leukemia (CLL); multiple
myeloma; Non-Hodgkin's lymphoma; acute and subacute
peripheral neuropathy; porphyria cutanea tarda; prostrate
cancer; respiratory cancers (cancer of the lung, bronchus,
larynx or trachea); and, soft tissue sarcoma (other than
osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or
mesothelioma). 38 C.F.R. § 3.309(e) (2006).
A veteran, who during active military, naval, or air service,
served in the Republic of Vietnam during the Vietnam era
shall be presumed to have been exposed during such service to
an herbicide agent, unless there is affirmative evidence to
establish that the veteran was not exposed to any such agent
during service. 39 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R.
§ 3.307(a)(6)(iii) (2006).
The record establishes that the veteran served in the
Republic of Vietnam from August 1967 to July 1968. Therefore
the Board concludes that the veteran was exposed to an
herbicide agent during his Vietnam era service. 38 U.S.C.A.
§ 1116(f); 38 C.F.R. § 3.307(a)(6)(iii) (2006).
The Secretary of Veterans Affairs has determined that there
is no positive association between exposure to herbicides and
any other condition for which the Secretary has not
specifically determined that a presumption of service
connection is warranted. In this regard, the Board observes
that VA has issued several notices in which it was determined
that a presumption of service connection based upon exposure
to herbicides used in Vietnam should not be extended beyond
specific disorders, based upon extensive scientific research.
See, e.g., 68 Fed. Reg. 27,630-27,641 (May 20,2003); 67 Fed.
Reg. 42600 (June 24, 2002); 66 Fed. Reg. 2376 (Jan. 11,
2001); 64 Fed. Reg. 59232 (Nov.2 1999).
Since myasthenia gravis is not specifically listed in 38
C.F.R. § 3.309(e), the presumption based on exposure to
herbicides in Vietnam does not apply to the veteran's claim.
Notwithstanding the foregoing, the Federal Circuit has
determined that the Veterans' Dioxin and Radiation Exposure
Compensation Standards (Radiation Compensation) Act, Pub. L.
No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not
preclude a veteran from establishing service connection with
proof of actual direct causation. Combee v. Brown, 34 F.3d
1039 (Fed. Cir. 1994). Thus, even if service connection may
not be presumed for a certain disorder based on a particular
type of exposure, VA is nevertheless obligated to consider
whether service connection can be established for that
disorder on a direct basis.
In this case, the veteran is not precluded from establishing
service connection for his current myasthenia gravis by
showing a medical nexus between his disease and his active
service. Id.; See also Brock v. Brown, 10 Vet. App. 155,162
(1997). However, in examining the record, the Board finds no
evidence establishing direct service connection for
myasthenia gravis.
Service medical records are absent for any mention of
complaint, treatment or diagnosis of the veteran's myasthenia
gravis in service. An October 1971 separation medical
examination report indicates no abnormalities or complaints.
An associated medical history report, filled out by the
veteran, lists only that the veteran had a "trick" or
locked knee. There are no complaints of limb pains or of
vision problems during service.
Furthermore, there is no competent medical evidence of
record, during service or post-service, establishing any
connection between the veteran's myasthenia gravis and
exposure to Agent Orange or any other event or condition of
his service.
June 2002 records from Dr. P.K., M.D., mark the first
diagnosis of myasthenia gravis, after complaints of an
inability to move his eyes and of double vision.
Neurological VA clinic notes from April 2005 report that the
veteran had ocular myasthenia gravis with mild involvement of
the proximal limb muscles and that he had been symptomatic
for about two and one half years. Thus, the onset of
symptomology occurred over three decades after separation
from service.
In a July 2004 letter, the veteran stated that a physician
told him that myasthenia gravis is a condition recognized by
VA as due to exposure to Agent Orange. However, "hearsay
medical evidence" is not competent evidence. See Robinette
v. Brown, 8 Vet. App. 69 (1995).
The Board acknowledges the veteran's stated belief that
exposure to Agent Orange caused his myasthenia gravis. As a
layperson, the veteran is not competent to offer a medical
opinion on the etiology of a condition. See Bostain v. West,
11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2
Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App.
183, 186 (1997) ("a layperson is generally not capable of
opining on matters requiring medical knowledge").
In summary, myasthenia gravis is not a disability for which
the presumption of service connection due to herbicide
exposure applies, the veteran's myasthenia gravis did not
manifest during service or for many years after service, and
no competent evidence of record establishes a direct
connection between the veteran's myasthenia gravis and his
service, to include herbicide exposure. The law simply does
not provide a basis upon which to grant service connection
for the veteran's myasthenia gravis. Therefore his claim
must be denied.
For the reasons provided above, the preponderance of evidence
is against the veteran's claim. The evidence in this case is
not so evenly balanced so as to allow application of the
benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet.
App. 49 (1990); 38 C.F.R. § 3.102 (2006).
ORDER
Entitlement to service connection for myasthenia gravis is
denied.
REMAND
Unfortunately, a remand is required in this case. Although
the Board sincerely regrets the additional delay, it is
necessary to ensure that there is a complete record upon
which to decide the veteran's claim so that he is afforded
every possible consideration
VA has a duty to assist a veteran in developing evidence to
substantiate a claim for service connection, including
providing a medical examination when such an examination is
required. 38 U.S.C.A. § 5103A (2006). An examination is
required when there is (1) competent evidence of a current
disability or persistent or recurrent symptoms of a
disability, and (2) evidence establishing that an event,
injury, or disease occurred in service or establishing
certain diseases manifesting during an applicable presumptive
period for which the claimant qualifies, and (3) an
indication that the disability or persistent or recurrent
symptoms of a disability may be associated with the veteran's
service or with another service-connected disability, but (4)
insufficient competent medical evidence on file for the VA to
make a decision on the claim. McLendon v. Nicholson, 20 Vet.
App. 79 (2006); 38 U.S.C.A. § 5103A (2006).
October 1967 service medical records show that the veteran
sought medical treatment for an injury of his right knee
during service. Both private medical records from May 1988
and VA medical records from February 2005 provide that the
veteran has a tear of the medial meniscus of the right knee
and osteoarthritis of the medial compartment of the right
knee. A March 2003 letter from Dr. A.O., a private
physician, expresses an opinion that could be liberally
construed as providing some association between the veteran's
current right knee abnormality and his service. Thus, the
Board requires a VA examination of the veteran's right knee
and a medical opinion as to etiology in order to make a
decision on his claim.
With regard to the veteran's claim for service connection for
a hearing loss and tinnitus, the Board notes that although
the veteran served in the Republic of Vietnam during the
Vietnam War and his military occupational specialty was wheel
vehicle mechanic, he asserts that he was exposed to loud
noise caused by rifle fire and exploding ordinance. A March
2005 VA outpatient clinic note provided a diagnosis of high
frequency sensorineural hearing loss and a reported history
of tinnitus over the past 35 to 40 years. Therefore, the
Board requires a VA audiological examination and opinion to
determine the extent and etiology of any hearing disability
or tinnitus.
In a July 2004 statement, the veteran stated that he was
receiving "state disability" for all of the conditions
claimed as service connected. In a separate July 2004
letter, the veteran stated that he had spoken to a "doctor
for the social security." These statements raise the
possibility that disability records held by the Social
Security Administration (SSA) or records from a state
organization administering disability benefits, may exist
that show evidence of a current left knee disability. The
duty to assist requires that VA make efforts to determine if
these records exist and to obtain the records if they do
exist. See 38 C.F.R. § 3.159(c)(2) (2006). Therefore, on
remand, the RO should make efforts to obtain any relevant SSA
records of disability. Furthermore, the RO should contact
the veteran and request information, and a release of
information if necessary, as to the existence of any relevant
records held by a state organization and make efforts to
obtain any such records.
Finally, the veteran should be provided with VCAA notice with
regard to assignment of effective dates and disability
ratings, in accordance with Dingess v. Nicholson, 19 Vet.
App. 473 (2006).
Accordingly, the case is REMANDED for the following action:
1. Send the veteran corrective VCAA
notice under 38 U.S.C.A. § 5103(a) and 38
C.F.R. § 3.159(b), that includes an
explanation as to the information or
evidence needed to establish a disability
rating and effective date for the claim on
appeal, as outlined by the Court in
Dingess v. Nicholson, 19 Vet. App. 473
(2006).
2. Request from the Social Security
Administration all records related to any
claim by the veteran for disability
benefits, including all medical records
and copies of all decisions or
adjudications. If no such records or
claims exist, a negative response should
be obtained and associated with the claims
file.
3. Invite the veteran to provide VA with
information as to the agency or
organization from which he is receiving
disability benefits and to provide a
release of information to obtain the
records. If such records are identified,
make efforts to obtain the records and
then associate any records obtained with
the claims file. If the records show
evidence of a left knee disability, the
veteran should be scheduled for an
appropriate VA orthopedic examination of
his left knee.
4. Schedule the veteran for a VA
orthopedic examination in order to
determine the nature and etiology of any
disability of his right knee. The claims
folder and a copy of this remand should be
made available to the examiner for review
before the examination. Any indicated
tests and studies should be conducted if
the examiner deems it appropriate.
The examiner should provide an opinion as
to whether it is at least as likely as not
that any current right knee disability had
its onset during the veteran's active
military service or is otherwise
etiologically related thereto. The
examiner is asked to comment specifically
on the service medical record notations
regarding treatment for complaints of
right knee pain.
The examiner must provide a comprehensive
report including complete rationales for
all opinions and conclusions reached
5. Schedule the veteran for a VA
examination, to include an audiometric
evaluation, to determine the extent of his
present bilateral hearing loss disability
or tinnitus. The claims file, a copy of
this remand, and any additional evidence
secured, must be made available to and
reviewed by the examiner prior to
completion of the examination report, and
the examination report must reflect that
the claims folder has been reviewed.
Based upon the examination results and a
thorough review of the claims folder, the
examiner should respond to the following:
(a) Does the veteran suffer from a current
hearing loss and/or tinnitus.
(b) Provide an opinion as to whether it
is at least as likely as not that any
current hearing loss or tinnitus had its
onset during active service or is related
to any in- service disease or injury,
including noise exposure.
The examiner must provide a comprehensive
report including complete rationales for
all opinions and conclusions reached.
6. Then, readjudicate the veteran's
claims, with application of all
appropriate laws, regulations, and case
law, and consideration of any additional
information obtained as a result of this
remand. If the decision with respect to
the claims remains adverse to the veteran,
he and his representative, if any, should
be furnished a supplemental statement of
the case and afforded an appropriate
period of time within which to respond
thereto.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims
that are remanded by the Board for additional development or
other appropriate action must be handled in an expeditious
manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
C. CRAWFORD
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs